The Internet Meets Obi-Wan Kenobi in the Court of Next Resort
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COPYRIGHT © 2001 TRUSTEES OF BOSTON UNIVERSITY. THIS VERSION DOES NOT CONTAIN PARAGRAPh/PAGE REFERENCES. PLEASE CONSULT THE PRINt, CD-ROM, ON-LINE DATABASE VERSIONS FOR PROPER CITATION INFORMATION ARTICLE THE INTERNET MEETS OBI-WAN KENOBI IN THE COURT OF NEXT RESORT ∗ SUSAN NAUSS EXON I. INTRODUCTION ............................................................................................. II. THE INTERNATIONAL CYBERCOURT CENTRAL WOULD PROMOTE EFFICIENCY IN SETTLING BOTH INTERNET AND NON-INTERNET DISPUTES ................................................................................................... A. Examples of Contemporary Cybercourts........................................... B. Overview of the International Cybercourt Central............................ C. The Look and Appearance of the International Cybercourt Central ......................................................................................... D. How the International Cybercourt Central Operates ........................ 1. The Registration Process ............................................................. 2. Use of the International Cybercourt Central Once a Dispute Arises ........................................................................... 3. The Internet Dispute Resolution Center....................................... 4. The Litigation Track of the International Cybercourt Central ....................................................................................... 5. The Scientific Process of Holography Operates as a Virtual Reality Looking Glass................................................... 6. Cybercourt Central Rules of Practice and Procedure for the Litigation Track ................................................................... 7. Advantages and Disadvantages of the International Cybercourt Central .................................................................... III. JURISDICTIONAL CONCERNS REGARDING FORUM SELECTION CLAUSES .................................................................................................... IV. CHOICE OF LAW CONCERNS.......................................................................... V. IMPORTANT TRIAL RIGHTS IN THE FEDERAL COURTS .................................. A. Due Process Considerations.............................................................. ∗ Assistant Professor of Law, University of La Verne College of Law; J.D., University of Wyoming College of Law, 1989. I want to thank Angelo J. Corpora, Charles S. Doskow and Ashley S. Lipson for reading earlier drafts and making helpful suggestions. Also, I want to thank my research assistant, Tina Mehta, for her invaluable research and attention to detail. B.U. J. SCI. & TECH. L. B. The Right of Confrontation ................................................................ 1. The Right of Confrontation in Criminal Proceedings.................. 2. The Right of Confrontation in Civil Proceedings........................ C. The Importance of Fact Finders at Trial ........................................... 1. Determinations of Credibility ...................................................... 2. Demeanor as an Element of Credibility....................................... VI. CONCLUSION............................................................................................... I. INTRODUCTION Point. Click. Scroll. Insert credit card information. Click again, and a sales transaction is completed over the Internet. What an easy way for Peter, who lives in Los Angeles, California, to purchase a beautiful jade necklace and bracelet for his wife. While sitting at his home computer, Peter is able to peruse an Internet advertisement, and ultimately purchase the jewelry from Michelle in China. Michelle’s Internet advertisement indicates that all jewelry includes certificates of appraisal. The advertisement guarantees that the jewelry is produced from the finest quality materials and that the clarity and color of the jade are exquisite. Peter pays $10,000 for the jewelry. When he receives it, he seeks an independent appraisal only to learn that the stones are poor quality and some have small, hairline cracks. In actuality, the jewelry is worth about $200. Outraged, Peter contacts Michelle, but she is uncooperative. Feeling helpless, Peter hires an attorney to file a lawsuit in the Los Angeles County Superior Court. A preliminary issue, however, is whether the court in California has jurisdiction over a Chinese national based solely on the Internet transaction. The above scenario is one example of the many experiences that people may encounter as they surf the Internet, searching for all kinds of products, services, and general information. Indeed, we live in a computer-ready world. The Internet — and technology in general — serves as the focal point of everyday life. Technological advances in computer hardware and software, including Internet capabilities, continually expand and evolve. Yet contemporary computers and the Internet are not, and cannot be, the terminal point upon which we must consider and ponder potential futuristic activities. The explosion of technological capabilities and the evolution of the Internet enable people to interact with anyone anywhere. These interactions may lead to disputes that are increasingly difficult to manage because they may involve parties distant from each other, whether on opposite sides of the United States, in different countries, in extra-worldly bodies such as the International Space Station, or even on different planets.1 Multi-lingual, multi-national party lawsuits will add to an otherwise complicated set of courts and other dispute 1 Advances in space travel trigger a whole host of issues that go beyond considerations of current computer technology and the Internet. The first “space tourist” returned to earth in May of 2001. See John Daniszewski, Russia Welcomes U.S. ‘Space Tourist’ as a Hero, L.A. TIMES, May 7, 2001, at A3. The result is that new doors are being opened as space travel continues to advance, enabling disputes to develop in outer space and beyond. 2002] THE INTERNET MEETS OBI-WAN KENOBI IN THE COURT OF NEXT RESORT resolution processes. The United States courts already face contradictory opinions in which judges seek to establish an appropriate jurisdictional forum based on Internet contacts. For decades, judges have adhered to the contemporary basis of jurisdiction set forth in International Shoe Co. v. Washington,2 which allows a nonresident defendant to be haled into a forum based on “minimum contacts” and “traditional notions of fair play and substantial justice.”3 Despite the borderless context of the Internet, however, judges continue to apply the jurisdictional standard of International Shoe to Internet activity.4 This practice is the beginning of a jurisdictional quandary. The seemingly simplistic standard of International Shoe, which is based on territorial boundaries, is exacerbated by applying the concepts of “minimum contacts” and “traditional notions of fair play and substantial justice,” to disputes that occur in a borderless context such as the Internet. In their jurisdictional analyses of Internet activity, many courts have adopted the “sliding scale” test of Zippo Manufacturing Co. v. Zippo Dot Com, Inc.5 Applying the sliding scale test to Internet activity, courts have examined the nature and quality of commercial activity that is conducted over passive, active, or interactive Web sites.6 In spite of the sliding scale as a so-called 2 326 U.S. 310 (1945). 3 Id. at 316. In International Shoe, the Supreme Court stated that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Id. (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). 4 See infra notes 5-7 and accompanying text. 5 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (finding exercise of jurisdiction proper because defendant purposefully availed itself of the forum’s jurisdiction by operating an Internet news service with 3,000 paying subscribers and entering into contracts with seven Internet access providers within the forum state). 6 At one end of the sliding scale are situations in which a defendant uses a Web site to post information, making it accessible to all computer users; these are passive Web sites, and generally courts refuse to find jurisdiction based on these Web sites alone. See Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997) (finding a lack of jurisdiction based on a passive Web site that allowed customers to sign up and indicate interest in defendant’s service and where defendant did not conduct business in the forum state, consummate sales or contracts with forum residents, or otherwise encourage forum residents to access its Web site); Haggerty Enters., Inc. v. Lipan Industrial Co., No. 00 C 766, 2001 U.S. Dist. LEXIS 13012, at **15-16 (N.D. Ill. Aug. 22, 2001) (finding a lack of jurisdiction based on a passive Web site that provided information about defendant’s products, although no prices were included, and allowed customers to contact defendant for information purposes only). At the other end of the sliding scale are situations involving active Web sites, enabling defendants to conduct business over the Internet. See CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1267 (6th Cir. 1996) (finding jurisdiction proper